Justice Oliver Wendell Holmes is often said to have been the greatest American judge. He was conservative in the older sense of the term, faithful to precedent and history, but he welcomed adaptations of the law to new realities. His thought and character stand as a rebuke to today's activists of the Right. Some reflections on the Constitution, originalism and the Supreme Court.

Tuesday, July 8, 2014

Holmes dissents.

Justice Holmes submitted from Beyond this dissenting opinion, which he has kindly provided to us as well:

The Court's decision in Burwell v. Hobby Lobby, even if as I think wrong it is wrongly decided, does not have immediate practical consequences and if the President is not able to fill the gap in health insurance that employers must provide for their employees, in a manner that satisfies my brethren, in the long run Congress will either correct our error or affirm our judgement. My respect for the Court would prevent me from offering my own views in such a case, if it were not that the majority opinion, like other recent decisions, reflects a doctrine that is not found in our law.

Not long ago, the Court decided that Americans have a near-absolute right to possess and use lethal weapons. This is said to be a right of self[-defense, but at common law, lethal means were not generally justified in self-defense, or in defense of property. This right to have and use lethal weapons is not conditioned upon a citizen's duty when called upon to defend his country, as the Constitution says, in the Court's view it is a form of self-determination.

In other contexts, the Court has held that business enterprises and persons of unlimited means may spend as much they like to influence political contests. In a case from Michigan, the Court upheld the right of white voters to enact into law their belief that the accommodations made for those who have suffered race discrimination somehow injure those who have not. In the Hobby Lobby case, finally, the Court now holds that natural persons, even when acting through corporate shells, have the right to do business in their religious character, a right to demand that business associates and employees conform to their beliefs. Congress is said to have ordered the federal government may not substantially burden such business practices. I would hesitate to impute such an intention to Congress, otherwise so foreign to our law, unless it is more clearly stated. The common thread among these recent opinions, although it is not clearly expressed, is a libertarian doctrine that holds the individual to be sovereign, in the sense that governments are sovereign.

Almost a century ago, I pointed out that the privilege we accord to freedom of speech and of the press, a principle derived from the English common law, is based upon the trust that society's interests are best served by free expression of honestly-held opinions. In our constitutional system, the marketplace of ideas provides the test of political truth. The Chief Justice has dismissed this principle with a wave of his hand: First Amendments rights are individual rights, he says. And so they are. But our Constitution grants legally enforceable rights to individuals only for proper public purposes. There may be a higher law, one to which many of us pledge obedience, but the law that this Court is authorized to enforce is a balance of correlative rights and duties, individual rights and community interests.

The Fourteenth Amendment, as we all now agree, did not enact Mr. Herbert Spencer's Social Statics. Nor does the Bill of Rights authorize the war of each against all. I respectfully dissent.